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Media perils and liability insurance 101

by Pat McNees, updated 6-28-2020

 

First of all, freelance editors and writers are often sent boilerplate contracts that include clauses requiring liability axis--which might make sense if you are rebuilding a wing of a building, but rarely make sense for a writer and certainly not for an editor. My advice (gained from others' experiences): Cross out that clause and tell the client that it isn't relevant because (if true) you don’t have employees, work onsite, travel on behalf of the client, see clients in your home office, operate heavy equipment, endanger the general welfare, and so forth. (H/T to Ruth E. Thaler-Carter for the wording.) If you raise an objection based on common sense, the client is likely to tell you just to strike the clause. If they don't and the fee is low, it probably won't make financial sense to sign the contract, or at least I would not do so. See also what Will MacPheat reports, in the Comments section.

Meanwhile, here's the best round up of information I have come up with for if you DO find yourself in a situation where you need to buy the insurance. Media perils liability insurance (or publishers liability insurance) may provide you with protection for such traditional claims as copyright infringement; libel; defamation, plagiarism; invasion or privacy or publicity or infringement of privacy or publicity rights; misappropriation of trademark, title, or slogan; defamation; misappropriation of property rights; personal injury; contextual errors and omissions.
What is covered depends on your policy so if there is any chance of your being vulnerable to a lawsuit, study your threats and options. You are protecting mainly against lawsuits, and I am no lawyer, so I report only on what I have learned over the years. I cannot recommend a particular insurance firm or broker, but just finding one is not easy so I list a few others have recommended. If you don't need the basics explained, scroll down to the section on Where to find liability insurance for authors and indie publishers.
Be aware, in particular, that what you are writing about, and how you are writing about it, will be a major factor in whether and how well you may be covered by any liability and media perils coverage. Kitty Kelley, writing scandal-filled biographies about famous people, is going to be at greater risk of lawsuits than Susan Rentmeister, writing about quilting. Some people get turned down for this kind of insurance, or pay through the nose for it.

And above all, be aware of (read about) what happens when people go to court about Defamation, libel, and slander. It is important to understand what a court is likely to determine is one of these three things (or not).

Be careful what you agree to in publishing contract

Authors: To begin with, be careful what you agree to in a contract. Many authors routinely strike out or modify the part of any contract that holds the client or publisher blameless for any suits related to a particular story. Clearly it makes no financial sense for writers to agree to indemnify and hold blameless the client or publisher. Some publishers' contracts include indemnification clauses that hold the publication blameless and assign the burden of liability to the writer (even though editors may change the content) and I can see that they might want to pressure the writer to be careful what they write. But even for a nuisance lawsuit, legal costs can be substantial. Ask that such a clause, or any indemnification clause, be struck from the contract, or change the wording so that the writer is liable for content only "as submitted or approved by the writer," as one health writer suggests (so you aren't liable for sentences inserted by the editor) and only for the amount the publisher has paid you (at a maximum). See also the language suggested in the following important position paper (which probably needs updating but explains the principles:
How to Deal with Warranty and Indemnification Clauses (Writers & Editors site)
Contract terms (especially but not only in book publishing) '

Media perils and publishers liability insurance, broadly


What Every Publisher Should Know About Publisher's Liability Insurance (attorneys Lloyd J. Jassin and Steven C. Schechter, CopyLaw)
Media Liability Insurance (Authors Guild) Three main causes of legal action against writers are defamation, public disclosure of private facts, and misappropriation of name or likeness. The AG recommends getting signed releases from named people or entities. It also has a group plan for Media Liability Insurance (WriteInsure) through Axis Pro, a leading provider (see below) of such insurance. You can download an updated PDF of FAQs about the WriteInsure program through the Guild (6-10-2020). In 2020, several members of the Authors Guild said Axis was virtually unresponsive, so the AG talked to them and this new handout with names and numbers may be an improvement in that situation. A few authors also complained that tehey had to do a big song and dance when there is some actual risk in a manuscript -- have the ms. vetted by a libel lawyer, get permissions to quote dead people (from their survivors), etc. We all know that someone like Kitty Kelley has to pony up big money for insurance for her tell-all biographies, but for a book less likely to be a bestseller, just be aware that media insurance can be a time-consuming and expensive pain, especially if your book does pose a risk.
I am a freelance journalist. Do I need to buy liability insurance? (Annalyn Kurtz, Columbia Journalism Review, 11-13-17) "Do not make the mistake of buying a basic general liability policy online, without considering some intricacies of media law." Do read this important article.
Liability Insurance — Nyet (Rich Adin, Business of Editing, An American Editor, 5-22-13). When a client insists that a freelance editor have errors and omissions insurance, what does the editor do? Explain why it makes no sense for editors.
Get Covered: Media Insurance for Writers (Tara Lynne Groth, Women on Writing, Nov. 2010)
Media perils insurance protects against lawsuits over libel, copyright infringement (Jennie Phipps, What Freelance Success Says, 5-19-11)

Where to find liability insurance for authors and indie publishers


• Authors Guild and ASJA, among other organizations. Axis Pro offers four levels of coverage through WriteInsure, ranging from $100,000 per claim (with an aggregate payment limit of $300,000) to $1,000,000 per claim (with an aggregate payment limit of $1,000,000). The program covers legal expenses incurred in defending a claim and any monetary damages or settlements you may be required to pay. The "self-insured retention" (similar to a deductible) ranges from $2,500 to $5,000, depending on the amount of coverage you purchase. See WriteInsure's Frequently Asked Questions (PDF, via Authors Guild). In 2020, several members of the Authors Guild told me Axis was virtually unresponsive, so the AG is looking into a new provider.
Media Liability Insurance (Authors Guild). The Guild has an agreement with AxisPro to offer its members professional liability insurance (through the insurance brokerage firm, John Buttine, Inc.). Download the FAQ for more details and see application form for Axis Pro's WriteInsure liability policy, for three covered activities: freelance writing (including commentary on third party websites and blogs), book authorship, and/or your own blog. In 2020, several members of the Authors Guild told me Axis was virtually unresponsive, so the AG is looking into a new provider.
SPJ offers access to insurance and financial services through consultants Harry W. Riley III and David N. Brown. Also offers life insurance through MetLife.
Publiability. Mike Mansell (Granite Insurance Brokers) specializing in media liability insurance for publishers since 1977
Media Liability Insurance (Digital Media Law Project, 2-19-2020) Useful explanations and links to some carriers of such insurance: ThinkRisk (now RSG), Chubb, Chubb (professional liablilty), AIG (Professional liability), The Hartford, and Hiscox.

•  A colleague who gave classes at a local Masonic Hall was required to cover her students while on their property. They recommended Hiscox Insurance. She signed up online, it was easy, and she paid by the month, only for those months when she taught, about $45 a month. She signed up here: http://www.hiscox.com/small-business-insurance/. I thought, How do we know if they provide good coverage? But she was buying it because they required it, not because she thought it made sense to have coverage during a class in which no one was doing things physically dangerous. Out of curiosity, I looked online to see if Hiscox got any positive or negative reviews and found both negative and positive reviews on one "reviews" page.
• Affordable media liability insurance is available for members of the National Federation of Press Women (through Walterry Insurance Brokers). Walterry offers media insurance for several types of media (click on "media insurance").
AxisPro's Loss Prevention Guide (PDF -- this excellent booklet provides broadbased basic info on defamation, defamation, invasion of privacy (more complex than you might expect), trademark infringement, and copyright infringement).

MusicPro Insurance (for instruments and computer equipment)

Comment below if anything useful is missing.

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COMMENTS

Thanks! This was very helpful as a new Indie author. I'm based in the UK, but as more of my sales very well may be in the US, I've been advised to look at getting insurance in the US. Your site provides terrific information and resources. Thanks, again!

--Sara Pascoe www.sarapascoe.com

I checked today with my homeowner's insurance. An extra $9 per year to extend the $300,000 liability coverage to include defamation, and an extra $34 to increase it to $1,000,000. Plus I qualified for a previously unknown 5% discount, so my annual bill actually goes down!

-- Will MacPheat

Pat responded:
Very helpful comment, Will. Do you mind saying, with whom do you have your homeowner's insurance? And what kind of material are you writing? -- Pat

Will responded (and I quote with his permission) "Liberty Mutual. Writing what would be called memoirs, about my dealings with the legal system. The second one gets pretty touchy as it has to do with a psychologist and probably a couple lawyers who violated numerous ethics with me. Everything is true, or if not true their own words or put in terms of allegations. But that doesn't stop them from suing. The agent is one I've dealt with for a good 10 years and I was very explicit about what I wanted to cover."

Question from Oliver: If I do not wish to join authors guild or any other organization like it, might I still be eligible for media liability insurance as an individual? If not, is there some sort of business model that I can form in order to acquire such insurance? Sort of self-employed author.

Pat's response:I don't know the answer to that question, Oliver. I expect you can buy liability insurance somewhere, and all of my advice is geared chiefly to self-employed (freelance) writers. But I assume that you would pay more as an individual than you would as a member of a group -- that seems to be how insurance works (they get more membership fees, and spread the risk).

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